Probate FAQs

Adoption

How can I find out if a child was legally adopted?

Adoption files are confidential. Only the attorneys to the parties, and the parties to the action, can look at the court file - with proper identification.

Once parental rights are terminated by a Court Order or the birthparents have signed their consent to the adoption, the child or children no longer belong to the birthparents.

For more information, see the  Santa Clara County Adoption Services  webpage and the Judicial Council's  Guide to Adoption in California .

In response to your question about whether it possible to be adopted by US citizen, we would suggest that you seek legal advice, which the Court is not able to provide. You can find a lawyer from the membership directory on the  Silicon Valley Bar Association’s website . You can also get a referral to a lawyer from the  Santa Clara County Bar Association  (phone number is 669-302-7803 ), or check the following legal aid links:

If you have someone in mind who lives in the US and who is agreeable to an adult adoption, you would have to find out what the laws are that apply in the state where they live.

How do I view adoption files?

Adoption files are confidential. Only the adopting parent or the adopting parent’s lawyer can get copies of court documents related to the adoption.

To ask for copies, go to the Records Division, at the Downtown Superior Court (DTS). You must show proof of identification.

To ask for copies by mail, the adopting parent must send a letter with a notarized signature or the adopting parent’s lawyer must send a request on the letterhead of the law firm.

The Court will not charge you to copy adoption files.

What if you were adopted and you want to see your court records?

You cannot see your own adoption file without an order of the court. To ask for a Court order, ask the Records Division at DTS for a Petition for Birth Record Access.

When the Court receives your Petition, it will ask the Department of Health Services in Sacramento to send any records in your file. Then, the Court will review all your birth records and your Petition.

Within 8 months, the Court will mail you an order to tell you if you can or cannot view your records.

How do I get an amended Birth Certificate (VS44)?

You must file an amended birth certificate form (VS44) with the Court on or before the final hearing date. You can get this form from the agency you are working with or from the Probate Department of the Superior Court (at DTS ).

After the adoption is final, the probate clerk will mail the VS44 to the State Registrar at the Department of Health Services in Sacramento. You will get an amended birth certificate in about 8 months.

For more information on amended birth certificates read the How to change the name on your child’s birth certificate  section of our Name Change web page.

Conservatorship

 I haven't received my disability money for the past two weeks.  My Conservator refuses to download my money to my checking account. What can I do?
Answer: Contact the Court Investigator's Unit at (408) 882-2761 .

Name Change

How to change a name on a child's birth certificate?

In cases of a simple name change for a child, you can start by visiting our web page on  Name Change  and reading the tab about changing a name for a child/minor. You will find links to forms on that page.

If you still have questions after reviewing that page, you may want to contact the Santa Clara County Clerk-Recorder's Office at (408) 299-5688 . You can also  visit their website .

The case you describe, however, where the issue is the father's last name, can be more complicated. In this situation there are paternity issues involved. Please see the  Family Self-Help FAQ on paternity on a birth certificate .

I am in the process of changing my name. Which newspapers in this county are qualified to publish orders and notices? 

Answer: Click to see the Probate  list of newspapers of general circulation  .

Property and Wills

How can someone find out if they are named in a will?

Probate Code Section 8200(a)   requires that the original will must be filed with the court in the county where the person who dies resided within 30 days after the person's death.

If Santa Clara is the county, then you can come down to our Record's Division at the  DTS Courthouse  in downtown San Jose, and request that we pull the will for you to see. We need to know the full name of the deceased and the year that the individual died.

There will be a fee for each year that is researched, and a copying fee per page. (Check fees listed on the  local fees page .)

You can also make a request by mail. Since you do not know the length of the will, you can write a check and indicate that the amount should not exceed whatever you estimate the cost will be and we will fill in the actual amount. Please include a self-addressed stamped envelope.

The mailing address would be: Probate Division,  Downtown Superior Court , 191 N. First Street, San Jose, CA 95113.

You can check online to see if a probate case has been filed. We have a list of probate cases on the  Case Information Portal .

If you know that there is a will and it is not filed with the court, then you should contact an attorney to determine what your options are. You can find a probate lawyer from the membership directory of the  Silicon Valley Bar Association’s website  . You can also get a referral to a lawyer from the  Santa Clara County Bar Association  . Their phone number is 669-302-7803 . You may also want to refer to our  Free & Low-Cost Legal Help page .

Self-Help

See the State Self-Help Guide to Wills, Estates, and Probate Court .

How can I find out who is the executor of my business partner's estate?

If there was Probate filed, you can get copies from the Court's Records Division. See the Civil Case Records FAQ for more information.

The death certificate is recorded at the Office of the County Clerk-Recorder in San Jose. However, the death certificate will not list the executors.

If there was a Will and Probate filed, it is the petitioner or the attorney for the petitioner's responsibility to notify everyone named on the will. The Petitioner is the person who files a Petition to Probate an Estate whether there is a Will or not depending on the situation of the Estate. The petitioner normally gets appointed as executor if there is a Will or administrator if there is no Will.

What is a Quit Claim Deed and where can I find one?

A quit claim deed is a document which states the release of someone’s claim or interest on a certain real estate property. Quit claim deeds are sometimes used in situations such as transferring real estate property between family members.

The deed is not a local or state form. To obtain the form, check at stationary stores or title company offices. You can also try doing an internet search (such as with Google) on the phrase "quit claim deed form."

Medical, Financial, End of Life Issues

Can I make my own medical decisions?

Yes. As long as you can act “with capacity” you can make your own medical decisions. Capacity means you understand the proposed health care, its benefits, risks, and alternatives. It also means that you can tell others what you want.

For more information read Probate Code  Section 4609 .

Can I ask someone to make decisions for me if I am no longer able to?

Yes, you can. But, you don’t have to. You can have someone (called your agent or attorneys-in-fact) make medical decisions for you. Your agent should be someone you trust. To do this, you write the agent’s name in a document called an Advanced Health Care Directive. (It used to be called a power of attorney for health care.)

It is usually a pre-printed form that lets you appoint an agent and give instructions about the type of health care you would want in different situations. You can also use this document to say if you want to donate your organs.

Is my old Power of Attorney for Health Care still valid?

Maybe. If your power of attorney for health care was valid before the law changed, it is still valid now. But some powers of attorney for health care made before January 1, 1992 have expired.

If you signed a power of attorney for health care before January 1, 1992, review it to be sure it is still valid and it still expresses your wishes. Even if you use a form printed before the new law, it may still be valid.

Where can I get a form for an Advanced Health Care Directive?

You can find the Advanced Health Care Directive form on the State of California Department of Justice website, or see Probate Code at  Section 4701 , or get the form from a lawyer.

The California Medical Association has a kit for people who want an Advanced Health Care Directive. Ask at your doctor's office, or visit the  California Medical Association  website.

How do I fill out an Advanced Health Care Directive?

You do not need a lawyer, but you may want one. You must make many important decisions when you fill out the form. You will:

  • Name agents who will follow your wishes and be willing and available to serve.
  • Leave copies of your directive for your agent, doctor and hospital.
  • Decide if you want to prolong your life if you are terminally ill. You can talk to your doctor about possible situations you may face.

You must have witnesses sign the document. There are certain people who cannot be your witness. If you live in a nursing home, the county ombudsman must review the document with you before you sign it.

What if I don't have anyone to serve as my agent?

You can still make a health care directive. Just fill out the part of the directive that says what your wishes are.

You can also appoint someone as a “surrogate” to make decisions for you when you are in a hospital or other medical institution, even if you haven’t named an agent.

Can the Court help me make health care decisions for a very sick relative if there is no Advance Directive?

Yes. If a relative has to go to the hospital for an emergency medical procedure and cannot give consent, you can ask the Court for permission under Probate Code  Section 3200  to give consent for your relative.

If your relative does not agree, s/he can file a petition under this same section to protect his or her right to make his or her own medical decisions. If your relative does not have a lawyer, the Court will appoint one for the hearing.

What if the sick person needs help for a long time?

You can go to Court and ask to establish a conservatorship. A conservatorship allows you to have the power to make medical decisions, if the sick person cannot make medical decisions on his/her own.

For more on conservatorships, see the  conservatorship page  at this website.

Can I ask to have a patient’s life support ended?

California law says you can tell a health care provider to terminate life support to a terminally ill person if that person left those instructions in a health care directive, power of attorney, or other communication to a health care provider.

If a terminally ill person did not leave instructions, you can go to Court and ask for an order, under a conservatorship, to end life support.

Self-Help

See the State Self-Help Guide for Wills, Estates, and Advance Care Planning .

This section talks about Living Trusts. For information on other kinds of Trusts, see Trusts .

What is a Living Trust?

A Living Trust is a legal tool for financial planning that allows a person (Trustee) to hold another person’s (Settlor's) property for the benefit of someone else (Beneficiary). Unlike a testamentary trust, a Living Trust goes into effect during the settlor's lifetime.

In most cases, the settlor, trustee, and beneficiary are the same person (at least until that person dies or becomes incompetent). In other words, if you set up a Living Trust, you can be the settlor, the trustee and the beneficiary of the trust.

You keep full control over the property and have the right to use and spend that property as if it had never been put into the trust.

What are the advantages of a Living Trust?

The most common reasons people set up a Living Trust are:

Reason Reason Information
You avoid Probate If all your property is in trust when you die (or become incompetent), then legally you don’t own anything in your name. This means, if you die, no probate (formal court administration of a decedent's estate) is needed to pass your property on to your beneficiaries.

Or if you become incompetent, no conservatorship (formal court proceedings to administer an incompetent person's assets) is needed to manage your property.

In either case, the person that you name in your trust as the successor trustee takes over.

If you die, the successor trustee can distribute the trust property according to your wishes without having to go to probate court to authorize the distribution.

If you become incompetent, the successor trustee can manage the property for your benefit without having to go to court for a conservatorship and without ongoing court supervision.
Tax Planning A Living Trust can help avoid or reduce estate taxes, gift taxes and income taxes, too. Your tax savings can amount to hundreds of thousands of dollars or more in some circumstances.

For more information, see below: Can a Living Trust help save or reduce estate taxes ?
Control Like a Will and a testamentary trust, a Living Trust lets you decide specifically what will happen to your property after you die.

You can also use a trust to control how your beneficiaries will spend their inheritance (to reduce the risk they may "blow it" on expensive vacations, cars, gambling, etc.).
Protection against Creditors Sometimes trusts can give assets to the beneficiaries and protect those assets from the beneficiaries' creditors.

But a Living Trust does not shelter the settlor from creditors. A creditor of the settlor has the same right to go after the trust property as if the settlor still owned the assets in his or her own name.
Privacy A trust is not a public record. So, the general public or anyone who is not a beneficiary does not have a right to know about the assets in your trust.

The only exception is that when you die, the successor trustee must give all of the named beneficiaries and all your heirs at law (the relatives who would have the right to inherit from you if you had died without a Will) the right to ask for and get a copy of the trust.

How do I set up a Living Trust?

Meet with a lawyer who specializes in estate planning. Together, you will review your assets and estate planning goals and options. You can find a probate lawyer from the member directory of the Silicon Valley Bar Association’s website . You can also get a referral to a lawyer from the Santa Clara County Bar Association . Their phone number is 669-302-7803.

If you decide to set up a Living Trust, the lawyer will write the trust document and review it with you.

After signing, you fund the trust by transferring title to all (or most) of your property to the trust. Your lawyer can help you with this.

Is my Living Trust “revocable”? Can I cancel or change it?

In most cases, yes. You can cancel or change the trust at any time. You act as trustee and manage the property for as long as you are able; and, if you want, you can have all trust property returned to you at any time.

The trust usually only becomes irrevocable when you die or if you become incompetent.

Sometimes, however, settlors make their Living Trusts irrevocable from the very beginning. (Irrevocable means the trust can’t be changed or canceled.) This is often done for tax planning or to protect assets from creditors.

Can a Living Trust help save or reduce estate taxes?

Yes. There are several kinds of Living Trusts that let you avoid, reduce or postpone federal estate taxes. Contact a lawyer to talk about your choices.

How much of my property is exempt from the estate tax?

The federal estate tax is based on the gross value of the property you own or control at the time of your death, over a certain amount.

Taxable property includes property in a trust that is revocable by your or over which you have excessive rights to use the property in it for your benefit, property in your name, funds from IRAs, retirement benefits, or life insurance and property held in joint tenancy.

The tax rate depends on the year of your death:

Year of Death Exempt Amount Highest tax Rate
2002
 $1 million 50%
2003
 $1 million 49%
2004
 $1.5 million 48%
2005
 $1.5 million 47%
2006
 $2 million 46%
2007
 $2 million 45%
2008
 $2 million 45%
2009
 $3.5 million 45%
2010
 $5 million* 35%*
2011
 $5 million 35%
2012
 $5 million 35%
2013 on
 $1 million 55%

* In 2010 a decedent’s executor has the option to pay estate taxes subject to the $5 million exemption, or opt out of estate taxes all together and instead be subject to the “modified income tax basis adjustment rules” under IRC Section 1022.

Property that is not taxable includes:

  • Property left to a tax-exempt charity
  • Property left outright or in trust for the benefit of a spouse, if the spouse is a U.S. citizen. (If the surviving spouse is not a U.S. citizen, you may have other alternatives. Talk to a lawyer if this could be your situation.)

What happens if I die or become incompetent?

With most Living Trusts, someone else, like a trusted friend, relative, or a professional trustee, will take over as trustee when you die or become incompetent.

At that point, the trustee has certain legal duties, including:

  • manage and invest your property
  • spend trust assets for your benefit (if still living), and
  • when you die, pay all of your debts and distribute or manage all trust assets according to your instructions.

Sometimes the terms of the trust will direct the trustee to NOT distribute the assets right away. The beneficiaries may be children or considered too young to handle their inheritance. Alternatively, the assets may continue in trust after the settlor dies for tax purposes or to protect the ultimate beneficiaries from creditors.

The successor trustee does not need to ask the court to get involved. S/he will probably only need the trust document and a death certificate.

If I have a Living Trust, do I still need a Will?

Yes. You should sign a "Pour-over Will" along with your Living Trust. The Pour-over Will is a back-up for any property that might not have been properly transferred to the Living Trust during the settlor's lifetime.

Without a Pour-over Will, any property acquired after you set up your Living Trust that inadvertently is listed in your name rather than in the name of your trust would normally pass to your heirs as determined under State law, who may or may not be the same people that you name in your trust to receive your assets at your death. The Pour-over Will will ensure that any such assets will be added to your trust so that they will be ultimately distributed to the beneficiaries you name in your trust.

If you have young children, you can use your Will to nominate a guardian for your children if both you and the other parent die or are otherwise & otherwise unable to care for your minor children.

What is a Power of Attorney?

A  Power of Attorney is a document that lets you appoint someone to represent you.

If you sign a Power of Attorney, you are the principal. The person you appoint to represent you is called the agent or attorney-in-fact.

How can a Power of Attorney help me?

A Power of Attorney lets you authorize someone to handle a specific task, like signing documents for you while you are away. For example, your agent can sign sale documents or contracts for the purchase of a house, or to sell your car.

Or, your Power of Attorney can authorize your agent to handle on-going tasks.

Here are examples of tasks you can have your agent do:

  • make bank deposits, withdrawals or other transactions
  • trade stocks and bonds
  • pay your bills
  • buy or sell property
  • hire people to take care of you
  • file your tax returns
  • arrange the distribution of retirement benefits
  • negotiate and sign contracts
  • apply for benefits like SSI or Medi-Cal

Your agent can do almost anything the Power of Attorney permits. You can also limit the kinds of financial decisions you want your agent to be able to make.

Can my agent write or change my Will?

No. Your agent can establish a trust, but cannot make or change your Will (Probate Code  Section 4264 ).

Can my agent use my assets?

No. Unless you specifically make a gift to him or her, it is against the law for your agent to make gifts to him or herself.

If you are 65 or older, and your agent takes your property without authorization, s/he can be charged with elder abuse.

What if I want to make a gift to my agent?

You can make a gift to your agent. However, if your Power of Attorney is a “Durable Power of Attorney,” i.e. one the remains in effect even if you become incompetent, a gift to your agent after you become incompetent may be restricted by law. This is because, if you are incompetent, it would be the agent who is deciding to make the gift of your property to him or herself. You may want to talk to a lawyer first.

Is it safe to use a Power of Attorney?

It is safe if the person you appoint is trustworthy and competent. Be careful to appoint someone you trust completely. That person may be able to access your bank accounts, sell your house, buy and sell stock in your name, cancel your insurance, or perform other important and sensitive transactions.

Can I appoint more than one agent?

Yes. Sometimes people appoint two or more people who make decisions for you together.

Or, you can appoint alternate agents. The alternate can step in if the other agent is unable or unwilling to serve.

Once the Power of Attorney is in effect, can I still make decisions on my own?

Yes. You can make all the financial decisions you used to before you had a Power of Attorney.

Can the agent do those things for me, too?

Yes, your agent can.

When does my Power of Attorney go into effect?

You decide when it goes into effect. You can make it go into effect immediately (when you have all the needed signatures), or only if you lose the ability to make financial decisions.

How long does a Power of Attorney last?

You can decide if you want your Power of Attorney to expire on a certain date, or after your agent does a specific task. Or, your Power of Attorney can be durable. This means it will last either until you cancel it or until you die.

Where can I get a Power of Attorney form?

You can get a blank Power of Attorney form from:

  • a stationery store or other store that sells pre-printed legal forms
  • your estate planning lawyer, or
  • a written copy of the correct language for Probate Code,  § 4401 , may be found at a law library, public library or on the Internet under the California Probate Code.

If you use a preprinted form, we recommend you use one that uses the same words as the Power of Attorney from Probate Code, § 4401. This is the form that banks, escrow companies, stockbrokers, and other institutions know best.

Some institutions, like banks, have their own Power of Attorney forms.

How do I know what to put in my Power of Attorney?

First, decide exactly what powers you want to give to your agent.

Then, ask yourself if you trust that person. Are there alternatives to a Power of Attorney?

Next, ask a lawyer for advice, or read about Powers of Attorney so you will understand what you are doing before you sign anything.

If you have one or more people you trust, and you know what powers you want to give them, you can find a preprinted document that matches your needs.

How can I be sure my Power of Attorney is valid?

You must sign the Power of Attorney. You can ask someone to sign for you, but you have to watch him or her do it.

The document must be acknowledged by a notary public or signed by at least 2 adult witnesses. An agent cannot be a witness.

If you want the Power of Attorney to be durable, it must say either:

"This Power of Attorney shall not be affected by subsequent incapacity of the principal", or
"This Power of Attorney shall become effective upon the incapacity of the principal",
or similar words that show you want the document to be valid even if you become incapacitated.

Your Power of Attorney must comply with the provisions of the  California Probate Code  from  Section 4000 through Section 4465 .

What if I create a Power of Attorney and later the Court appoints a conservator for my estate?

Unless the Court or the conservator says otherwise, your agent can continue using the Power of Attorney to handle your affairs.

Your agent must tell you and the conservator about everything s/he does in your name.

What can I do if there is a dispute about a Power of Attorney?

You can end or cancel the Power of Attorney at any time. (See: Can I cancel or change my Power of Attorney? below.)

If your friends, relatives or officials are aware of problems with a Power of Attorney, they can file a petition with the Probate Department. The petition can ask the Court to review what the agent has done. The Court can decide to investigate further.

Can I cancel or change my Power of Attorney?

Yes. Cancel it in writing. Then, give your statement or new Power of Attorney to any institutions [like banks or stockbrokers] that had the old Power of Attorney.

Until you do this, they can still use your original document.

What if the agent is having problems getting others to recognize the Power of Attorney?

The agent can ask the Court for help by filing a petition to ask the Court for confirmation that s/he is acting as your lawful agent.

Or, if a bank or brokerage firm does not accept the Power of Attorney, your agent can ask the Court to order the institution to honor his/her authority.

See Probate Code  Section 4540 .

Other Probate Related FAQs

How can I access or get copies of a document in a Probate file?

A request for copies or certified copies of documents for Probate matters should be directed to Superior Court Records Division, 191 N. First St., San Jose, Ca 95113, if those documents/papers were filed with the Court. Or come to Records in person at  DTS  in downtown San Jose.

You can also contact Records Division by telephone at (408) 882-2100 ext. 2450 .

Check the local fee schedule  on the  Fees page  for information on copy fees.

For more information about copies of court files, see the  Civil FAQ on accessing court records .

See the  Court transcript page  for information on obtaining a copy of a court transcript.

See info on  court transcripts  in the Online Services section of this site

How can I find out about probate sales or foreclosures?

The Probate Division of the Court is not involved in probate sales or foreclosures.

Local newspapers may contain information regarding probate sales (see  list of newspapers  ), or you may be able to search for probate sale information online.

There are sometimes probate sales outside of the  Downtown Superior Court  on the Market Street side by private individuals. These sales can be conducted here because it is a public place. Although the Court does not post information about probate sales, notices may be posted in the courthouse on a public bulletin board, located on the first floor lobby.

Where are the local and state pages for these?

Other Assistance

If you are unable to find the answer to your Probate Court-related question after reviewing the pages in our  Probate Self-Help section  of this website, the  Probate Division pages , and the Frequently Asked Questions above, you can contact our Probate Department by email at  ssprobinfo@scscourt.org . If your question is not covered on the Court's websites, we will do our best to respond to your question within 48 hours.

We cannot give legal advice, only legal information. Please refer to our  Free & Low-Cost Legal Help page , and consider contacting our  Self-Help Center/Family Law Facilitator's Office .

Other FAQ pages